interpretation NOW!
Episode 110 – 19 July 2024
interpretation NOW!
is best viewed in PDF format.
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interpretation NOW! is an internal ATO initiative aimed at improving awareness about statutory interpretation. It is not a public ruling or legal advice and is not binding on the ATO. |
The US Supreme Court has struck down a ban on bump stocks on the basis they do not convert assault rifles into machineguns.1 Bump stocks use the recoil energy of these rifles, enabling them to fire up to 800 rounds a minute.2 Legislation defines ‘machinegun’ by an ability to shoot more than one shot ‘by a single function of the trigger’.3 Thomas J applied older dictionary definitions of ‘function’ and ‘trigger’ to reason that bump stocks merely enable multiple functioning of the trigger despite the shooter’s finger remaining stationary. The dissenters said this was inconsistent with ordinary meaning, context and purpose. CNN called out a ‘crusading literalism’.4 Dictionaries are interpretation gospel in America.5 In our system, they merely provide context-free evidence of contemporary usage. Unlike in the US, we also apply an ‘always speaking’ approach to statutes.
Gordon Brysland – Tax Counsel Network gordon.brysland@ato.gov.au
Axiomatic approach
Arrotex Pharmaceuticals v Minister [2024] FCA 522
This case is interesting for Rofe J’s description (at [46]) of the central passage in SZTAL as the ‘axiomatic approach’ to interpretation.6 There, the High Court said that, if the ordinary meaning ‘is not consistent with the statutory purpose, [it] must be rejected’. This principle has its roots in s 15AA. It is self-evidently correct, and therefore ‘axiomatic’, for 3 reasons. First, s 15AA is a command of parliament. Second, it is given explanation and emphasis by the High Court. Third, it is actively applied in all courts, as this case shows.7 iTip – our system axiomatically rejects literalism (as well as what Edelman J calls ‘textual fundamentalism’8) as the focus of its investigation.9
Comity of nations
eSafety Commissioner v X Corp [2024] FCA 499
The eSC gave a notice seeking to force X (Twitter) to block globally a violent video.10 If not blocked, Australians might access the video via VPNs. This raised how far domestic law may reach into the global sphere consistent with the ‘comity of nations’. Kennett J (at [49-51]) explained that local laws are not interpreted to deal with things where jurisdiction properly belongs to another sovereign state.11 The notice here would affect X’s activities in all places it has servers. Effectively, the eSC ‘would be deciding what users of social media services throughout the world were allowed to see on those services’. The eSC, therefore, could not enforce global blocking.
Across the Tasman
Whai Rawa Railway v BC 201036 [2024] NZCA 207
Episode 92 noted that the frequent instruction of our High Court to have regard to text, context and purpose12 is hardwired into NZ legislation. Section 10(1) of their Legislation Act 2019 says – ‘ The meaning of legislation must be ascertained from its text and in the light of its purpose and its context ’. As Whai Rawa explains (at [54-55]), this is the starting point of analysis.13 Even where the text may appear plain in isolation, its meaning ‘should always be cross-checked against purpose’. Social, commercial or other objectives may also be relevant. As the leading textbook in the area says, the purposive approach ‘is more in line with democratic theory’14.
Legislative Codes
Dayney v The King [2024] HCA 22
A legislative code is to be construed ‘without any presumption that it was intended to do no more that restate the existing law’.15 D was a meth addict. He killed V with a baseball bat after V produced a gun during a planned burglary at V’s place. D said that everything he did after the gun came out was to preserve his own life. D was convicted of murder. The issue was how exceptions to self-defence in the Criminal Code (Q) are to be read. The court analysed the text in detail. It concluded (at [29]) that, if D engages in force that provokes V to retaliate with equal force, D should not get the benefit of self-defence without first retreating – appeal dismissed.
§ Thanks – Oliver Hood, Ross Carter, Matt Freestone & Jeremy Francis.
[1] Garland v Cargill 602 US 406 (2024), cf Episode 93 (earlier proceedings).
[2] Bump stocks were used in the 2017 Las Vegas massacre (58 killed).
[3] National Firearms Act 1934 , 26 USC §5845(b), with (2018) 83 Fed Reg 66514 .
[4] Erdozain (15 June 2024) CNN online, others applauded.
[5] eg Bostock 590 US 644 (2020), Episode 61 , cf Basten & Terrell 94 ALJ 825.
[6] SZTAL v Minister [2017] HCA 34 [14] plurality, cf Gageler J [35-40].
[7] McLennan [2023] FCAFC 191 [18], Sydney Seaplanes [2021] NSWCA 204 [29].
[8] Greylag [2024] HCA 21 [107, 114-117], to be discussed in Episode 111.
[9] A2 [2019] HCA 35 [32], Basten & Gvozdenovic (2022) 96 ALJ 392 (394).
[10] s 109 of the Online Safety Act 2021 (Cth) – church stabbing incident.
[11] Impiombato [2022] HCA 33 [27-31], Barcelo (1932) 48 CLR 391 (424).
[12] Moorcroft [2021] HCA 19 [15], Westpac [2021] HCA 3 [54].
[13] Fonterra [2007] NZSC 36 [22], TN [2023] NZCA 664 [60] for example.
[14] Carter Burrows & Carter Statute Law in New Zealand (308).
[15] Namoa [2021] HCA 13 [11], Pickett [2020] HCA 20 [23-23], Episode 73 .
ISSN 2651-9518
ISSN 2651-9518